Huang v Dawson Builders Ltd

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2017-425-000016 [2017] NZHC 1444

UNDER	the Land Transfer Act 1952
IN THE MATTER	of an application for an order that caveat 10697986.1 not lapse
BETWEEN	T K HUANG Applicant
AND	DAWSON BUILDERS LIMITED Respondent

Hearing:	21 June 2017
Appearances:	R Reeve for Applicant A J Logan for Respondent
Judgment:	27 June 2017

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [on application for order that caveat not lapse]

Introduction

[1]      Thomas Huang asserts that he is the purchaser of a commercial property at Cromwell pursuant to an unconditional agreement to purchase the property from Dawson Builders Limited (DBL).  Mr Huang caveated the title to protect his interest. DBL commenced the caveat lapsing procedure under s 145A Land Transfer Act 1952 (the Act).

[2]      Mr Huang now applies for an order that his caveat not lapse.

HUANG v DAWSON BUILDERS LIMITED [2017] NZHC 1444 [27 June 2017]

The agreement

[3]      The agreement, dated 16 January 2017, is on the standard REINZ/ADLS

form.1

[4]      By the agreement DBL agrees to sell to Mr Huang the property for $525,000. The agreement incorporates all the general terms of sale.

[5]      The agreement contains, as a further term of sale (“clause 19”), a condition in the following terms:

19.0 Lawyers Approval as to Title.

This  agreement  is  conditional  on  Building  Covenance  (sic)  for  building accommodation satisfaction for 15 working day (sic) from signing Date.

Settlement on 14th April 2017.

[6]      There is a definition of “working day” in clause 1.1(32) of the agreement,

which provides:

“Working day” means any day of the week other than:

(a)       Saturday,  Sunday,  Waitangi  Day,  Good  Friday,  Easter  Monday, Anzac Day, the Sovereign’s Birthday, and Labour Day;

(b)      If Waitangi Day or Anzac Day falls on a Saturday or Sunday, the following Monday;

(c)       A day in the period commencing on the 24th day of December in any year and ending 5th  day of January (or in the case of sub-clause

10.2(2) the 15th  day of January) in the following year, both days

inclusive;

(d)      The day observed as the anniversary of any province in which the property is situated.

A working day shall be deemed to commence at 9.00 am and to terminate at

5.00 pm.

[7]      As the provincial holiday in Otago is observed on 20  March, it did not constitute a “working day” and fell to be excluded from the calculation of “working

days” under this agreement.  The provincial holiday in Auckland (observed on the

1      Form approved by the Real Estate Institute of NZ Incorporated and Auckland District Law

Society Incorporated, 9th ed, 2012 (5).

Monday nearest to 29 January) is irrelevant as the property is not situated there.  On the other hand, Waitangi Day (6 February) fell within the 15 working day period from 16 January 2017.   On application of the agreement’s definition of “working day”, the final date for confirmation of satisfaction of the clause 19 conditions was 7

February 2017.

[8]      Clause  10.8  of  the  agreement  deals…